Thoughts from the interface of science, religion, law and culture

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

EVENTS

Santorum: Still Incredibly Dishonest

Rick Santorum’s latest Worldnutdaily column purports to establish President Obama’s “despotism.” The president, he says, has shown “continual disregard for the United States Constitution and the separation of powers it set forth to protect the American people from government by fiat.” And he’s right, of course, but not for the reasons he mentions. The first one is a lie:

Two days after he took office, President Obama rescinded by executive order the “Mexico City policy,” which prevents foreign aid going to organizations that perform or promote abortions. No legislation passed, no debate, just an executive order.

Yeah, just like Ronald Reagan did it when he implemented the policy by executive order in 1984. And when it was overturned by executive order by Bill Clinton in 1993 and then reinstated by George W. Bush by executive order in 2001. There’s nothing the least bit “despotic” about this. It was instituted by executive order, it can be rescinded by executive order.

In early 2011, the Obama administration stop enforcing the Defense of Marriage Act, or DOMA, a law duly passed by Congress and signed into law. Here President Obama has directed his Department of Justice to ignore the Constitution and separation of powers and not enforce a law.

Two claims, two lies. The DOJ continues to enforce DOMA, they just decided not to defend it in court. Those are not at all the same thing.

In early 2012, Obama’s Health and Human Services department set forth the so-called “contraceptive mandate,” which requires all employers – including religious charities and institutions – to provide free contraception to all employees, a clear violation of the Constitution’s guarantees for freedom of conscience and freedom of religion.

Wrong again. The policy requires insurance companies to provide contraception coverage for all people covered by a group insurance policy even if that policy does not include it. The employers don’t have to do a thing.

Last June, the president announced that the Department of Homeland Security will no longer deport young illegal immigrants who meet certain criteria. These criteria were proposed by the controversial DREAM Act, which has been working its way through Congress but has not been passed into law. Forget about whether this is a good law or a bad one; it’s about respecting the legislative process and letting these issues be debated and discussed. No, instead the president just picked aspects of the bill he liked and ordered his administration to follow them, even if they are illegal.

But they’re not illegal. Federal attorneys have prosecutorial discretion, meaning they can choose the cases in which they will bring charges. The Supreme Court upheld such executive agency discretion in a 1995 case called Heckler v Chaney, ruling that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” The ruling said that even federal courts could not intervene in their use of such discretion. It was a 9-0 ruling authored by Justice Rehnquist, one of the most conservative justice in the history of the court.

Earlier this month, as the nation endured the “fiscal cliff” crises and negotiation, the administration floated the idea of minting the trillion-dollar coin. Why? Because the president needs Congress to raise the debt ceiling for the U.S. Treasury to borrow more to fund the government. Rather than have to negotiate with Congress, he could have had the U.S. Mint create a coin for $1 trillion and deposit it in the treasury. Though ultimately rejected as an idea, once again here was a plan to avoid confronting the “check” in the system – the Republican-controlled House.

Someone came up with an idea and rejected it? Wow, how terribly oppressive.

This brings us to Wednesday’s announcement of 23 executive orders to be signed by the president to attempt to address gun violence in the wake of the Sandy Hook tragedy. Once again, rather than respect the rule of law and the checks and balances in our system, President Obama is unilaterally implementing public policy without the normal process that involves legislation, debate and passage by a vote of Congress.

Another lie. In fact, most of those “executive orders” (many were not that at all) were entirely within his purview. The few that required congressional approval were stated as exactly that, a commitment to try to pass legislation. Santorum doesn’t point to a single one of those 23 recommendations or policies and make an argument for why Obama can’t do them. Why should he? His audience is immune to facts.

I can do a much better job of arguing that Obama has shown “disregard for the United States Constitution and the separation of powers” than this. He has done exactly that in many ways, from the use of the State Secrets Privilege to make the executive branch immune to civil suit to the relentless pursuit of whistleblowers to his expansion of the NSA data mining program to his support of a range of unjust court rulings on prosecutorial immunity, access to DNA evidence and illegal surveillance. But Santorum can’t mention those things because he agrees with them, so he lies and invents “despotic” actions that don’t exist.

I fully expect every President to try and increase the power and scope of the executive. That’s kind of the nature of the office. We’ve come to this point where Presidents can get away with it because congresscritters view party loyalty as more important than their role as a check/balance to executive overreach. Cowardly or self-serving congresscritters is where the problem lies. They’ll allow a President of their own party to get away with just about anything (would it be fair to say: literally murder?).

Want to hold a war without our express approval? Well Mr. President, you looking hawkish will help with my reelection, so I will stand here and clap for you instead of doing what I ought to as a legislator, and slapping you into next week with an act of congress reminding you that that’s OUR power, not yours.

And the same sort of calculus applies to just about any other issue. Will I, as a legislator, personally benefit from ceding power X to the executive? Yes? Would I lose if I was seen as aligning with the other party’s legislators in trying to prevent the executive from doing X? Yes? Okay, I cede that legislative power. They give no thought to the long term consequences of such decisions.

I love the last paragraph. I hold special contempt for folks who have good (at least respectable) arguments for thier views but decide to use personal attacks or made up bull instead.

“The Supreme Court upheld such executive agency discretion” <–True but a pity. One of the under remarked power shifts over the last 30 years has been the increase in power of administrative agencies. Another name for "administrative agencies" is bureaucracy.

I've met with a handful of my State legislators (both chambers but only a few individuals) and they frequently cited to how various agencies 'tied their hands.' Some of that was plain deflection but there were good points too.

“Wrong again. The policy requires insurance companies to provide contraception coverage for all people covered by a group insurance policy even if that policy does not include it. The employers don’t have to do a thing. ”

This has always struck me as disingenuous. The insurance companies aren’t going to do this for free out of the goodness of their hearts, they’ll just call it ‘free’ and fund it by raising prices elsewhere, you either pay $5 for contraception and $95 for other insurance, or $0 for contraception and $100 for other insurance, all that’s changing is a line on the bill.

This has always struck me as disingenuous. The insurance companies aren’t going to do this for free out of the goodness of their hearts,

Its not disingenuous. Statistically, including contraception coverage saves them money. If this were purely a capitalism issue, insurance agencies would treat them like air bags and give you a discount for having them. Medical payouts associated with babies are, like auto injury payouts, orders of magnitude higher than the costs associated with providing preventative mechanisms.

aluchko, a not-pregnant insuree is cheaper than a pregnant one (and regularly inspected ladyparts are cheaper in the long run than those that aren’t). That’s why the insurance companies didn’t make a peep.

This has always struck me as disingenuous. The insurance companies aren’t going to do this for free out of the goodness of their hearts, they’ll just call it ‘free’ and fund it by raising prices elsewhere, you either pay $5 for contraception and $95 for other insurance, or $0 for contraception and $100 for other insurance, all that’s changing is a line on the bill.

eric responds:

Its not disingenuous. Statistically, including contraception coverage saves them money. If this were purely a capitalism issue, insurance agencies would treat them like air bags and give you a discount for having them. Medical payouts associated with babies are, like auto injury payouts, orders of magnitude higher than the costs associated with providing preventative mechanisms.

eric, a cite would be welcomed. The last time I researched this, in 2009, there was no consensus position amongst economists about which approach lowered insurance company costs. An early-2012 Factcheck.org article reports this question remains an unknown: http://www.factcheck.org/2012/02/cloudy-contraception-costs/ .

I understand why “common sense” would have one intuitively conclude free contraception coverage lowers the cost insurance company costs. But King Evidence frequently falsifies common sense, which is why scientific literates find Sarah Palin so absurd.

“Earlier this month, as the nation endured the “fiscal cliff” crises and negotiation, the administration floated the idea of minting the trillion-dollar coin.”

Bah, I know this may seem trivial, but he’s got the “fiscal cliff” completely mixed up with the debt ceiling ransom. They are completely different things brought about for different reasons. Although in both cases it was Santorum’s part that caused the crisis, on purpose, in an attempt to extract concessions that they couldn’t get through the normal Constitutional process. If you want to complain about abuse of power, that would be a good place to start.

Ronald Reagan did it when he implemented the policy by executive order in 1984. And when it was overturned by executive order by Bill Clinton in 1993 and then reinstated by George W. Bush by executive order in 2001.